Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : PE 52627 of 2008, PE 53543 of 2008, PE 53544 of 2008

Criminal law - Appeal from convictions - Convictions for dangerous driving, assault and unlawful damage - Findings by magistrate contrary to prosecution case - Turns on own facts

1 BLAXELL J: This is an application for leave to appeal, and an appeal, from the appellant's convictions in the Perth Magistrates Court on 26 May 2009 for offences of dangerous driving, assault, and unlawful damage. These convictions relate to a traffic incident on 1 September 2008 involving an episode of alleged 'road rage' by the appellant (Mr O'Callaghan).

2 It was the prosecution case that while driving in a line of traffic the appellant deliberately caused a minor collision with a following vehicle, and then broke the windscreen and assaulted the driver of that other vehicle. The appellant was charged with reckless driving for causing the collision, but was convicted of the lesser offence of dangerous driving. In respect of the windscreen, he was charged with wilful damage but convicted of the lesser offence of unlawful damage. He was convicted of assault as charged.

3 The appellant's grounds of appeal are very voluminous and contain a good deal of irrelevant material. For the reasons which follow I consider that only one of his grounds has any reasonable prospects of success, namely:

1. The magistrate presented his own interpretation of events leading up to the collision. The magistrate's interpretation was not congruent with evidence presented by any of the parties involved in the case.

4 At about 6.00 pm on 1 September 2008 the appellant was driving a white Nissan Skyline sedan owned by his partner Tracy Lynton. Ms Lynton was eight months pregnant and was travelling as a front seat passenger in the vehicle. The vehicle was being driven east along the Kenwick Link and the appellant intended to turn right in order to head south along Royal Street, Kenwick.

5 The intersection between these two roads was controlled by traffic lights, and there were two right hand turn lanes on the Kenwick Link. As the appellant approached the intersection there was a red light, so he stopped in the left hand of the two turning lanes while waiting for the lights to change. In the right hand turning lane there was a white Commodore utility being driven by Ms Elsie Hayden. Approximately five vehicles back there was also a marked police vehicle being driven by First Class Constable M A Ward, with Sergeant M B Stewart as passenger.

6 When the lights changed and the vehicles made their turn into Royal Street they continued along in two lanes for a short distance but those lanes then merged into one lane and the roadway curved to the right. Because of this right hand curve, the two officers in the police vehicle had a reasonably clear view of the vehicles ahead as they were merging into a single line of traffic.

7 As the two lines of traffic began to merge, the vehicles driven by the appellant and Ms Hayden were more or less abreast of each other. However, the appellant ended up ahead and there was then a minor collision between the rear and front of their respective vehicles. The evidence before the magistrate provided three different versions (from Ms Hayden, the two police officers, and from the appellant and Ms Lynton) as to how that collision occurred.

8 The prosecution case was based on the police officers' version. It was that the appellant had committed an offence of reckless driving by braking suddenly and bringing his vehicle to a complete halt in front of Ms Hayden's vehicle. In this regard, it was contended that there were no other vehicles in front of the appellant nor any other reason why he should have stopped.

9 It is not in issue that after the collision the appellant got out of his car and hit the windscreen of Ms Hayden's vehicle with his fist. There was an issue before the magistrate as to whether or not this action caused damage to the windscreen. There was also an issue as to whether or not the appellant then assaulted Ms Hayden in some fashion through the open driver's window.

10 Although Ms Hayden was unable to recall how many vehicles were in front of her at the time of the collision, it was her evidence that she was in amongst two lines of traffic while waiting at the red light. After turning into Royal Street, the appellant's vehicle was on her left and he 'squeezed through' in front of her. She had to slow down to allow him to do this.

11 As the two vehicles merged Ms Hayden was travelling at about 20 km per hour but she then started 'picking up the pace' to about 30 km per hour. She also 'high beamed' the appellant to express her displeasure with his previous manoeuvre.

12 However, when she did this the appellant 'slammed his brakes on'. Ms Hayden immediately did the same but was unable to stop and there was a minor collision. The impact 'wasn't hard' and resulted in some minor damage to her bumper.

13 According to Ms Hayden there was less than 50 metres between the two vehicles at the time that the appellant braked. In cross-examination (ts 27) she conceded that she 'might have [had] plenty of time to stop', but (as I understand her evidence) she was concerned about the possibility of colliding with following traffic.

14 After the collision the appellant got out of his vehicle and approached hers in a very angry mood. He punched her windscreen causing it to crack without breaking. He then punched her four times in the chest through the open driver's window.

15 It was the evidence of both police officers that they saw the appellant's vehicle stop very suddenly in the middle of the road causing it to 'lean forward heavily'. There were no other vehicles nor any obstruction ahead and there was no reason for the appellant to stop. As a result of this action Ms Hayden's vehicle ran into the back of his. According to Constable Ward there was approximately a car length between the two vehicles at the time the appellant applied his brakes. Their speed was approximately 50 km per hour.

16 The two police officers then saw the appellant get out of his vehicle and approach the white Commodore. He struck the windscreen of the Commodore with his right hand and then leaned through the open driver's side window. He delivered two punches through the window and Sergeant Stewart saw the first of these punches connect with Ms Hayden's face. Constable Ward drove up alongside Ms Hayden's vehicle and the appellant was arrested.

17 It is the evidence of both the appellant and Ms Lynton that after making the right hand turn into Royal Street their vehicle was abreast of, but slightly in front of, Ms Hayden's vehicle. The two vehicles were travelling at probably 20 km per hour, no more than 30 km per hour.

18 The appellant then accelerated slightly, and it was his evidence that he did so in order to allow Ms Hayden to 'slot straight behind me'. However, Ms Hayden also accelerated and remained in the 'exact same position'. According to the appellant, by then he was at 'the point of no return' and 'had nowhere to go', so he kept on accelerating. Ms Hayden then dropped in behind him.

19 The appellant then looked in his rear vision mirror to see where the Commodore was. He noticed that it 'was a fair way back' and that its headlights were flashing. As he was looking in the rear vision mirror he 'slowed down slightly' to 'allow more of a buffer' with the vehicles ahead.

20 Ms Lynton was watching Ms Hayden's vehicle, and it was the evidence of both her and the appellant that she saw it picked up speed. Ms Lynton screamed a warning to the appellant but the collision then occurred.

21 The appellant admitted in evidence that after the collision he approached Ms Hayden's vehicle and slammed his hand down on top of its windscreen. When he did this he saw a crack at the top of the windscreen and thought to himself 'What have I done?'. However, when reflecting on the matter afterwards, he concluded that his action could not have damaged the windscreen. In this regard he did not believe that he had used sufficient force to crack the windscreen and he did not injure his hand.

22 The appellant denied hitting or punching Ms Hayden but admitted reaching in and grabbing her by her shirt.

23 The magistrate considered that the evidence as a whole was very puzzling because 'none of it makes any sense at all'. His Honour did not accept that the appellant had deliberately slammed on his brakes in order to cause Ms Hayden to run into him. Likewise, his Honour did not accept that Ms Hayden had deliberately accelerated and rammed the appellant's car.

24 The magistrate nevertheless found the appellant was guilty of dangerous driving (as distinct from the offence charged of reckless driving). His Honour's reasons in coming to that decision were as follows:

All the evidence seems to me to be very difficult to reconcile, for the reasons that I have pointed out. It seems to me - or it seemed to me eventually - that there is only one explanation which, to my mind, must necessarily rather detract from the observations of the police officers who, of course, have the accused coming to a sudden, abrupt and complete stop in the middle of the road so as to cause Ms Hayden to run into the back of him. As I said before, unless the accused is completely barking mad, I can't imagine anybody doing that.

...

[S]omehow these two vehicles found themselves vying for a position in the merging lineup and the accused got in front, to the annoyance of Ms Hayden - she felt that she had been cut off and she flashed her lights.

The accused, as I say, got in front of her in the lineup and, in my view, the only possible explanation of what happened is that he did that by speeding up and, of course, his partner gave evidence of him going faster and faster. Then when he got there, there was a car in front of him and he had to quickly slow down again. He may have been distracted by the flashing headlight in his rear vision mirror, or whatever, but I am satisfied that he then had to slow down and slow down suddenly and Ms Hayden ran into the back of him.

Now that, as I say, seems to me the only possible explanation. If it is right, the police officers were wrong about the manner of him coming to an absolute complete sudden stop. Although he must have been stopped, or almost stopped, for her to smash into him. They are also wrong about saying that there weren't any cars in front of him because the only way I can make any sense of all of this is to assume that there must have been traffic in front of him, as one would expect in a merging line of cars, and he got too close to the one in front and had to stop or slow down, and that's what caused Ms Hayden to run into him.

I reject, absolutely, any suggestion that she would deliberately have driven at high speed into the back of him. This situation, in my view, is caused by him over aggressively cutting in, in front of Ms Hayden and, as I say, having to stop. I can't see any other way of explaining what happened. The question then arises whether, to do that, amounts to reckless driving within the meaning of section 60 of the Road Traffic Act.

I find myself puzzling over that, too, given that this is a situation, especially in Western Australia, where drivers seem to be absolutely incapable of any sensible sort of merging - situations that arise only too often. But in the event, I would find the accused guilty of - once again of the lesser offence - of dangerous driving, section 61 of the Road Traffic Act (ts 6, 7).

25 The magistrate was also satisfied that the appellant's action of striking the windscreen had caused it to crack, and that he had at the very least 'grabbed hold' of Ms Hayden. He found the appellant guilty of unlawful damage (as distinct from the offence charged of wilful damage) and of assault.

26 Eight of the grounds of appeal relate to the magistrate's findings in respect of the damage of the windscreen and the assault of Ms Hayden. Without going into the details of those grounds it is my view that each of them is without merit. (In the course of the hearing of the appeal I went through each of these grounds and explained my views in this regard to the appellant). In my view, his Honour's findings as to the appellant's guilt of unlawful damage and assault are unassailable.

27 However, I consider that the position is quite different in respect of the magistrate's finding that the appellant was guilty of dangerous driving. Although this finding provided a perfectly logical explanation for what occurred, it was contrary to the version of events alleged by the prosecution and was not supported by the evidence of any witness.

28 In this regard, the case that the prosecution alleged against the appellant in its opening was that he had caused his vehicle to 'become stationary very quickly in front of the victim's vehicle. His manner of braking we say was reckless in all of the circumstances' (ts 3). The appellant was cross-examined on this basis, and he was never asked to comment on the version of facts as subsequently found by his Honour.

29 In finding that the appellant had to slow down because of a vehicle in front the magistrate rejected the evidence of the police officers on which the prosecution case was based. Furthermore, it was common to the evidence of all three of Ms Hayden, the appellant and Ms Lynton that the vehicles had continued to accelerate after they had merged, and that there was sufficient time for Ms Hayden to flash her headlights before any collision occurred. On the assumption that there was a vehicle or vehicles in front of both of them, the curve in the road would have given her an equal opportunity to be aware of the need to slow down.

30 For these reasons I consider that it was not open to his Honour to convict the appellant of the offence of dangerous driving on the basis as found. It follows that the first ground of appeal should succeed.

31 Leave to appeal should be granted in respect of ground 1 and the appeal based on that ground should be allowed.

32 As the magistrate rejected critical aspects of the evidence of all three prosecution witnesses it is inappropriate to order a retrial of the prosecution notice alleging reckless driving. In lieu of the finding that the appellant is guilty of dangerous driving, that prosecution notice will be dismissed. There will be no order as to costs.